Cherniwchan v. State, s. 5024

Citation594 P.2d 464
Decision Date03 May 1979
Docket NumberNos. 5024,5025,s. 5024
PartiesJames A. CHERNIWCHAN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). James W. HARRISON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
CourtUnited States State Supreme Court of Wyoming

Steve D. Noecker, Rawlins, for appellants.

John J. Rooney, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and Leonard D. Munker, Senior Asst. Atty. Gen., Cheyenne, for appellee.

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. *

ROSE, Justice.

Defendants-appellants, James A. Cherniwchan and James W. Harrison, were charged with, tried for, and found guilty of violating § 6-8-305, W.S.1977, pertaining to escape from the Wyoming State Penitentiary.

Eights days after their escape, namely on November 1, 1977, the defendants were arrested and returned to the penitentiary; and ten days later, a complaint and warrant issued, charging them with the crime of escape. The warrant was returned eight days later, on November 18, 1977.

On February 15, 1978, 107 days after their arrest, the defendants were, for the first time, brought before the magistrate. At this juncture, the public defender's office was notified.

On April 11, 1978, 162 days after their arrest, a preliminary hearing was held and the defendants were bound over to district court. The information was filed on April 14, 1978, arraignment had on April 19, 1978, and trial was held on May 22, 1978, 203 days after arrest.

The defendants charge the following errors:

"I. Rule 5 of the Wyoming Rules of Criminal Procedure was violated by an unnecessary delay of 107 days between the defendants' arrest and their first appearance before a magistrate, requiring the dismissal and vacation of all proceedings had thereon.

"II. Defendants' constitutional rights to due process and a speedy trial were violated as guaranteed to them under the 5th, 6th and 14th amendments to the United States Constitution and Article 1, Sections 6 and 10 of the Wyoming Constitution.

"III. Section 7-9.3 of the Wyoming Statutes (Cum.Supp.1975), (Now 7-1-111, W.S.1977), was violated by the failure of law enforcement officers, at the commencement of the defendants' detention, to inform them of their right to appointed counsel and to notify the justice of the peace that they were not represented by counsel, requiring the dismissal and vacation of all subsequent proceedings had thereon."

We will affirm the trial court's judgment entered upon the jury's verdict of guilty and its order refusing dismissal and vacation of the proceedings due to unnecessary delay.

ERROR I (supra)

Rule 5 of the Wyoming Rules of Criminal Procedure provides:

"(a) Appearance Before the Commissioner. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person Without unnecessary delay before the nearest available commissioner. When a person arrested without a warrant is brought before a commissioner, a complaint shall be filed forthwith.

"(b) Statement by the Commissioner. The commissioner shall inform the defendant of the complaint against him and of any affidavit filed therewith, of his right to retain counsel, of his right to request the assignment of counsel if he is unable to obtain counsel, and of his right to consult counsel and to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him." (Emphasis supplied)

The questions for our decision are: (1) Was Rule 5 violated by an "unnecessary delay" between the arrest and the appearance before the magistrate? and (2) If the rule was violated, what is the effect of its violation?

Rule 5 was violated.

Rule 5(a) of the Wyoming Rules of Criminal Procedure requires an arrested person be taken "without unnecessary delay" before a court commissioner. The term "without unnecessary delay" is not subject to precise definition, nor does it call for mechanical obedience. Application of the limits of the term is dependent upon both the facts and circumstances of the particular case, viewed in light of the purpose of the rule. Richmond v. State, Wyo., 554 P.2d 1217, 1228 (1976); Raigosa v. State, Wyo., 562 P.2d 1009, 1015 (1977); and Sciberras v. United States, 10 Cir., 380 F.2d 732, 734 (1967).

The rule was violated in that the 107 days after arrest before the defendants were taken before a magistrate, constitutes not only an unreasonable delay but an unconscionably unreasonable delay by any and all standards. Both the district court and the county attorney conceded the fact of unreasonable delay at the oral arguments on the defendants' motion to dismiss.

What is the effect of a Rule 5 violation under the facts of this case?

Rule 5 is not unlike its counterpart in the Federal Rules of Criminal Procedure, the origin of which stems from the abuse described in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); and McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). The purpose of the rule is to prevent officers from illegally obtaining statements during a defendant's initial confinement, but prior to appearance before a magistrate, 5 Am.Jur.2d, Arrest, § 75, p. 752 (1962), which is to say that its purpose is to prevent the abuses described in McNabb v. United States, supra, and Mallory v. United States, supra. 1 Judge Murrah, writing for the Tenth Circuit in Blood v. Hunter, 10 Cir., 150 F.2d 640, 641 (1945), stated:

"The proper application of the McNabb doctrine was demonstrated in United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 897, 88 L.Ed. 1140, in which it was emphasized that the vice at which the McNabb case was directed was 'inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure,' and that a conviction thus obtained could not stand. But the mere fact that the accused was illegally detained in violation of 18 U.S.C.A. § 595, does not of itself void a conviction based upon competent evidence. . . ."

It is admitted that in the case at Bar there was no evidence to be excluded, but defendants urge that because of the long delay, the lack of incriminating statements should be of no consequence, and the defendants' remedy, in these circumstances, should be dismissal. The relief accorded a defendant victim of unnecessary delay is the exclusion of evidence obtained during the delay. Mallory v. United States, supra, citing to McNabb, supra.

In 1 Federal Practice and Procedure, Wright, § 37, pp. 77-78, it is said:

". . . But even under McNabb-Mallory, it was not true that violation of the procedure rule itself would require that a conviction be set aside. If defendant never confessed, he could not claim error because of unnecessary delay in taking him before a magistrate. The same rule applies if defendant confessed but his confession was not offered in evidence against him. The exclusion of evidence is the only remedy for violation of the procedural rule. Undue delay in taking the accused before the magistrate does not require dismissal. . . ."

In United States v. Kenner, 36 F.R.D. 391, 393 (1965), the court said:

". . . In addition, he calls the Court's attention to the fact that he was arrested at 7 P.M. rather than at some more convenient time, taken to dinner instead of being arraigned immediately, denied an early opportunity to telephone counsel or his family, and detained overnight, although a state magistrate was available to set bail. Assuming arguendo that the foregoing infringed defendant's rights, this furnishes no basis for voiding the indictment; his sole remedy is exclusion of evidence tainted by illegal detention. . . ." (Citing to Mapp v. Ohio, 367 U.S. 643, 651-653, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)).

We conclude, therefore, that even though the defendants' Rule 5 rights were violated, under the facts of these cases their only relief is the exclusion of evidence tainted by illegal detention and not dismissal.

ERROR II (supra)

We agree defendants have a federal and state constitutional right to a speedy trial. In Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), the United States Supreme Court held that the Fourteenth Amendment to the United States Constitution made its federal constitutional Sixth Amendment guarantees obligatory on the states. In Klopfer, Chief Justice Warren, writing for the court, said:

"We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, 'We will sell to no man, we will not deny or defer to any man either justice or right'; . . ." 386 U.S. at 223, 87 S.Ct. at 993, 18 L.Ed.2d at 8.

Justice Brennan, concurring in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), spoke of the evils at which the speedy-trial clause is directed, when he said:

". . . It is intended to spare an accused those penalties and disabilities incompatible with the presumption of innocence that may spring from delay in the criminal process. . . ." 398 U.S. at 41, 90 S.Ct. at 1570, 26 L.Ed.2d at 34.

In Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), the court, in interpreting Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), said that an affirmative showing of prejudice was not necessary to prove a denial of the constitutional right to a speedy trial and held:

" 'We regard none of the four factors identified above (length of delay, reason for delay, defendant's assertion...

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